The Centenary of a Mistake: One Hundred Years of Corporate Criminal Liability

47 Pages Posted: 20 Aug 2009 Last revised: 8 Apr 2014

John Hasnas

Georgetown University - Robert Emmett McDonough School of Business; Georgetown University Law Center

Date Written: August 19, 2009

Abstract

This article argues that there is no justification for corporate criminal liability. First of all, corporations are not moral agents capable of morally praise- or blameworthy action, and hence are not properly subject to punishment. Secondly, criminal punishment of corporations is inappropriate because 1) it advances none of the legitimate purposes of punishment, 2) it creates an unacceptable risk of prosecutorial error or abuse, and 3) it is not necessary to address a public harm. The only purpose served by threatening corporations with criminal punishment is to shift the balance in power between the prosecution and defense in white collar criminal cases radically in favor of the prosecution. However, this is inconsistent with the inherent liberal bias of the criminal law that embodies the normative assessment that an unrestrained government is a greater danger to citizens’ well-being than any number of individual criminals. Corporate criminal liability cannot be theoretically justified because it is directly violative of the theoretical structure of Anglo-American criminal law.

Keywords: corproate criminal liability, New York Central

Suggested Citation

Hasnas, John, The Centenary of a Mistake: One Hundred Years of Corporate Criminal Liability (August 19, 2009). American Criminal Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=1457771

John Hasnas (Contact Author)

Georgetown University - Robert Emmett McDonough School of Business ( email )

3700 O Street, NW
Washington, DC 20057
United States

Georgetown University Law Center ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States

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